The state Supreme Court
has declined to review a ruling that requires a fugitive medical marijuana
advocate and former gubernatorial candidate to return to California or have his appeal from
misdemeanor drug convictions dismissed.

Justices at Wednesday’s
conference voted 6-0 to let stand the Third District Court of Appeal’s decision
in the case of Steven Wynn Kubby. Justice Joyce L. Kennard was absent.

Kubby, the 1998
standard-bearer of the Libertarian Party, was sentenced to 120 days in jail for
possession of two controlled substances, psilocyn and mescaline, in December
2000. The Third District Court of Appeal ruled in April of this year that the
appeal would be dismissed if Kubby did not return within one month.

Kubby has been living
near Vancouver, B.C. since failing to
surrender almost a year ago. Placer Superior Court Judge John L. Cosgrove
imposed the sentence after jurors convicted Kubby on the two charges but
deadlocked on additional allegations of cultivating marijuana, possessing it
for sale, and conspiracy.

Kubby’s wife was also
charged in the counts on which jurors could not agree. Those charges were
dismissed by Cosgrove, who reduced the convictions on the lesser charges to
misdemeanors, pursuant to Penal Code Sec. 17(b).

Kubby was a key
supporter of the medical-marijuana law, Proposition 215, which he raised as a
defense at the trial. He suffers from adrenal cancer, and his doctors have said
that his life would be at risk if he were incarcerated and denied access to
marijuana.

Prosecutors argued that
the amount of marijuana seized from Kubby’s residence was far more than he
needed for any personal use, and that Proposition 215 was no defense to the
charge that he had sold marijuana to “cannabis clubs” for distribution to other
medical users.

They are appealing the
reduction of the mescaline conviction to a misdemeanor, saying the judge erred
in determining the crime was a wobbler rather than a felony. Kubby
cross-appealed, arguing among other things that the search was illegal and that
he is entitled to a no-jail sentence under Proposition 36.

But Justice Dan Kolkey,
writing for the Court of Appeal, said misdemeanor appeals, like those from
felony convictions, are subject to what is sometimes called the fugitive
disentitlement doctrine. A person convicted of a crime cannot appeal while
avoiding the court’s jurisdiction, the justice explained, because “a fugitive
has no right to ask the courts to review the very judgment that the fugitive
flaunts.”

Kolkey rejected the
argument that because misdemeanor defendants are not required to attend court
proceedings, a misdemeanor defendant who has left the jurisdiction rather than
serve a jail sentence is not a fugitive.

The rule, the justice
explained, is not premised on the obligation to appear, but on the “broader
doctrine” that it would be a “farce” for a court to hear an appeal by a person
over whom the court is unable to enforce its judgment.

The Court of Appeal also
held that the fact that Kubby was cross-appealing, as opposed to having appealed
initially, was of no relevance. Kolkey distinguished a case involving fugitive
film director Roman Polanski, who won a ruling that the doctrine did not
prevent him from defending himself in a lawsuit.

A cross-appeal is not
merely a defensive measure, Kolkey said, because it seeks affirmative relief.

Kubby’s medical
condition, Kolkey went on to say, is no basis for an exception to the doctrine.
The defendant had alternatives to becoming a fugitive, the justice suggested,
such as moving for a stay of the jail term pending appeal—which the trial judge
had said he would consider, Kolkey pointed out.